Presenter: Joedy Gray

I. Executive Summary: This item presents proposed amendments to the Harmful or Potentially Harmful Exotic Fish, Shellfish and Aquatic Plants Regulations. The proposed amendments mostly reflect changes to the scientific nomenclature and reclassification of some species, correct errors, provide consistency and clarify certain provisions. In addition, with respect to the list of harmful or potentially harmful exotic fish, two genera of carp have been added, a prohibition on round gobies has been added and two families, the Temperate Basses, except for three species native to Texas waters, and the Chinese perches have been added. With respect to the list of harmful or potentially harmful exotic shellfish, the prohibition on crayfishes has been expanded from a single genus to all southern hemisphere crayfishes and the prohibition on applesnails and giant rams-horn snails has been expanded from a single genus in each group to the entire family, except for one species popular in the pet trade. Finally, eight species have been added to the list of harmful or potentially harmful exotic aquatic plants in order to be consistent with USDA and Texas Department of Agriculture regulations.

II. Discussion: Parks and Wildlife Code, Chapter 66, Subchapter A, §66.007 authorizes the commission to regulate the importation, possession, sale and placing into water of this state of harmful or potentially harmful exotic fish, shellfish and aquatic plants. Additionally, the Agriculture Code, Chapter 134, Subchapter A, §134.020 gives the commission authority to regulate importation, possession, propagation and sale of harmful or potentially harmful exotic species by an aquaculturist.

"Texas Parks and Wildlife Commission adopts amendments to §§57.111, 57.113-124, 57.129-134, 57.136, concerning Harmful or Potentially Harmful Exotic Fish, Shellfish and Aquatic Plants, with changes as necessary to the proposed text as published in the July 21, 2006 issue of the Texas Register (31 TexReg. 5762)."

The Texas Parks and Wildlife Department proposes amendments to §§57.111, 57.113-57.124, 57.129-57.134 and 57.136, concerning Harmful or Potentially Harmful Exotic Fish, Shellfish and Aquatic Plants. The amendments are necessary to reflect changes in the scientific nomenclature and reclassification of some species, correct errors, improve consistency and clarify certain provisions. In addition, the department has determined that it is necessary to add several families, genera and species to the definition of harmful or potentially harmful exotic fish, shellfish and aquatic plants in order to better protect native aquatic resources and to be consistent with United States Department of Agriculture and Texas Department of Agriculture regulations.

The proposed amendment to §57.111, concerning Definitions, would alter the definition of “fish farmer” by including the term “aquaculturist,” replace the term “fish farm” with the term “aquaculture facility” and replace the term “fish farm complex” with the term “aquaculture complex”. The amendment is necessary to clarify that the subchapter applies to persons who culture or possess harmful or potentially harmful exotic aquatic plants. Conforming changes to reflect the altered terminology are made throughout the subchapter. The amendment also defines the terms ‘gutted’ and ‘beheaded’ to ensure unambiguous meanings of those terms for the purposes of enforcing the provisions of §57.113, concerning Exceptions, which established certain conditions under which exotic fish may be possessed or transported.

The proposed amendment to §57.111, concerning Definitions, would update the rules to include changes in scientific nomenclature and the reclassification of certain species, correct errors, and make nonsubstantive changes in the interest of clarification and consistency.

The proposed amendment to current §57.111(14)(E) would clarify that the provisions of the subchapter affect only the genus Hydrocynus and add the correct subfamily name. The proposed amendment is necessary to make the provisions of the subchapter taxonomically accurate.

The proposed amendment to current §57.111(14)(F) would correct a misspelling (Pirambebas) and exclude the genus Piaractus from the provisions of the subchapter. The proposed amendment is necessary to maintain accurate taxonomic references and to exempt a genus that is fairly popular in the pet trade and not deemed to be an ecological threat to native ecosystems.

The proposed amendment to current §57.111(14)(G) would add the family name and common name for tetras affected by the subchapter in order to provide clarity and maintain parallelism with the identification convention employed throughout the subchapter.

The proposed amendment to current §57.111(14)(H) would add the family name for affected dourados in order to provide clarity.

The proposed amendment to current §57.111(14)(J) would comport the taxonomic references in the paragraph to conform with that prescribed by the American Fisheries Society. The proposed amendment is necessary to ensure accurate taxonomic references.

The proposed amendment to current §57.111(14)(M) would add the common names of affected carps and minnows, and add two new genera (Labeo and Catlocarpio) to the list of prohibited carps and minnows in addition to making changes to reflect reclassifications, corrections and clarifications. Carp in the genera Labeo and Catlocarpio are nearly identical to those in two already prohibited genera, Cirrhinus and Catla, respectively. Generally, exotic carp have caused a wide array of ecological problems in Texas and elsewhere and it is reasonable to assume that the genera Labeo and Catlocarpio have the potential to cause similar problems. These genera were not restricted previously because there did not appear to be an importation threat. However, small specimens of Catlocarpio are beginning to become available in the international pet trade, including over the internet. Catlocarpio are large Asian carp that reach sizes of eight feet or more. Aquarium fish that rapidly grow very large are prime candidates for illegal releases in local waters. Therefore, it is prudent to restrict these genera now before major trade markets have developed as opposed to attempting to eliminate them after they have become established in food markets or the pet trade.

The proposed amendment to current §57.111(14)(S) would adjust taxonomic references as necessary to reflect reclassification within the Tilapia family by the scientific community.

The proposed amendment to current §57.111(14)(V) would adjust taxonomic references as necessary to reflect reclassification within the Percidae family by the scientific community.

The proposed amendment to current §57.111(14)(W) would add taxonomic language to address differences of opinion within the scientific community regarding the family name of Nile perch.

The proposed amendment to current §57.111(14)(X) would correct the common names of the species affected by the subparagraph. The proposed amendment is necessary to improve clarity.

The proposed amendment to current §57.111(14)(Z) would correct a misspelling (Ruffe). The proposed amendment is necessary to maintain accurate taxonomic references.

The proposed amendment to §57.111(14)(DD), would correct an error by moving Heteropneustidae to subparagraph (AA), because the Heteropneustidae is the scientific name for the air sac catfishes family and should not be listed under the goby family. The proposed amendment also adds a single genus of the goby family to the definition of harmful or potentially harmful fish, shellfish and aquatic plants. Round gobies have already invaded the Great Lakes and have exerted significant detrimental ecological impacts there by devouring native fishes and their eggs and by their aggressive habits of driving native species from their spawning, nursery and feeding areas.

The proposed amendment to current §57.111(14)(CC) would add the common name of the Anguilliidae family. The proposed amendment is necessary to improve clarity.

The proposed amendment to current §57.111(14)(EE) and (FF) would add two new families (Moronidae and Percichthyidae) to the definition of harmful or potentially harmful fish, shellfish and aquatic plants. The Asian and European Moronidae and the Percichthyidae are ecological counterparts of Texas native striped and white basses and would compete for the same ecological niches. The Moronidae have already become established in the Great Lakes, where they are known to eat the eggs of white bass and other native species and to hybridize with native bass. The Percichthyidae, or Chinese perches, also known as cold water groupers, are cold and salinity-tolerant fish with very large mouths that are very similar to bass and have the potential to be competitive to a detrimental extent with Texas native basses.

The proposed amendment to §57.111(15)(A), also would expand the prohibition on harmful or potentially harmful crayfish from a single genus to all southern hemisphere species. Virtually all crayfish species can be ecological problems when introduced outside their natural ranges. Crayfish are a central component of freshwater food webs and ecosystems, acting as the dominant consumers of benthic invertebrates, detritus, macrophytes, and algae and as important forage for fish. Thus, additions to or removals of crayfish species from a native ecosystem often lead to large ecosystem effects, including changes in fish populations and losses in biodiversity. North American crayfish species are particularly susceptible to invasions from non-indigenous species because they have limited natural ranges. The single greatest threat to crayfish biodiversity worldwide is from accidental or intentional introduction of non-indigenous crayfish. In Europe, native crayfish have suffered from competition with introduced crayfish, but the greater impact has been caused by a fungal plague carried by non-indigenous species. Consequently, it is prudent to restrict non-indigenous crayfish species now before they become components of the aquaculture or pet industries and emerge as a significant problem. The proposed amendment to current §57.111(15)(C), (E) and (G) reflects reclassifications and makes clarifications. Under the current rules, a single genus of giant rams-horn snails and a single species of applesnails are prohibited. The proposed amendment would expand the prohibition to include the entire family, which now includes both of these groups as a result of reclassification. The expansion is necessary because many of these snails are significant crop and ecological pests, eating plants and carrying diseases and parasites. An exception has been included for spiketop applesnail, which is the primary snail sold for aquarium culture. Spiketop applesnail is not cold-tolerant, does not eat larger aquatic plants, and is unlikely to become established or problematic in Texas. The amendment also alters taxonomic references to reflect reclassification within the Penaeid shrimp family by the scientific community, which is necessary to maintain accurate taxonomic references.

The proposed amendment to current §57.111(16)(A), (C), (I) and existing §57.111(16)(L) would alter scientific names to include alternate common names (duckweed, water spinach), to reflect reclassification of certain species by the scientific community (waterhyacinth) and would add eight species to the list of harmful or potentially harmful exotic aquatic plants in order to be consistent with United States Department of Agriculture and Texas Department of Agriculture regulations. The amendment is necessary to improve accuracy and clarity, and to ensure that the rules do not conflict with federal provisions.

The proposed amendment to current §57.111(17) and (29) would clarify the boundary description of the harmful or potentially harmful exotic species exclusion zone and explicitly state that shellfish and/or water from a quarantined facility may not come into contact with public water. The proposed amendment is necessary to more accurately identify the area of the state to which the exclusion provisions apply, and to explicitly state a prohibition so as to remove the possibility of ambiguity.

The proposed amendment to current §57.111(30) would add a definition for “shellfish disease specialist.” The amendment is necessary because the provisions of §57.114, concerning Health Certification of Exotic Shellfish, requires that exotic shellfish be certified as disease free by shellfish disease specialist. The proposed amendment establishes the criteria that a person must meet in order to be regarded by the department as qualified to certify the health status of exotic shellfish.

The proposed amendment to §57.113, concerning Exceptions, would replace terminology as necessary to be consistent with the proposed amendments to §57.111, concerning Definitions, and clarify the conditions under which exotic fish or shellfish may be possessed without a permit. The current rule specifies that exotic fish and shellfish may be possessed without a permit if ‘the intestines have been removed.’ The amendment would replace that phrase with the phrase ‘gutted or beheaded.’ The intent of the current rule is to prevent live exotic fish and shellfish from being released into native ecosystems. By using the term ‘gutted’ the department hopes to provide a more precise description of the condition that must exist in order for the exception to apply and provides for beheading in addition to evisceration as an acceptable practice for ensuring non-viability.

The amendments to §57.114, concerning Health Certification of Native Shellfish, would reword the provisions of subsections (d), (e), (f)(2), (g), (h), (i) and (j) to conform terminology to be consistent with the proposed amendment to §57.111 and to make the grammatical structure consistent. The proposed amendment also clarifies the disease-testing process that must by followed by an aquaculture facility prior to the discharge of waste into or adjacent to public waters. Under current rules, a sample of shellfish must be tested for disease manifestation before a facility harvests or discharges waste ‘for the first time in a calendar year.’ The rules further require that the tests be performed within 14 days of harvest or discharge. In practice, harvest occurs once per year; however, some facilities could potentially complete more than one harvest cycle in a year, and some facilities periodically conduct water exchanges. Because the intent of the current rule is to ensure that exotic shellfish in a facility are tested and certified within 14 days before water is discharged, the department has determined that it is necessary to remove potential ambiguity from the current rule. Therefore, the proposed amendment requires disease testing to take place no more than 14 days before any harvest or discharge occurs. The amendment is necessary to protect water resources and aquatic ecosystems.

The amendments to §57.115, concerning Transportation of Exotic Species, and §57.116, would conform terminology to be consistent with the proposed amendment to §57.111 and effect other nonsubstantive changes, such as implementing a consistent capitalization convention.

The proposed amendment to §57.116, concerning Exotic Species Invoice, also would conform terminology to be consistent with the proposed amendment to §57.111 and effect other nonsubstantive changes, such as implementing a consistent capitalization convention.

The proposed amendment to §57.117, concerning Application Requirements, would allow persons who wish to culture harmful or potentially harmful exotic aquatic plants to be eligible to apply for an exotic species permit. The proposed amendment also would conform terminology to be consistent with the proposed amendment to §57.111.

The proposed amendments to §§57.118, concerning Exotic Species Permit Issuance; 57.119, concerning Exotic Species Permit: Requirements for Permits; 57.120, concerning Exotic Species Permit: Expiration and Renewal; and 57.121, concerning Exotic Species Permit – Amendment, also would conform terminology to be consistent with the proposed amendment to §57.111.

The proposed amendment to §57.122, concerning Appeal, would eliminate the reference to rules of practice and procedure of the department and require instead that all appeals be conducted as provided by the State Office of Administrative Hearings. The amendment is necessary because the department repealed its rules of practice and procedure in 1996.

The proposed amendment to §57.136, concerning Penalties, would add a reference to penalties prescribed under the Agriculture Code. The proposed amendment is necessary to include the department’s authority to impose penalties under the Agriculture Code for certain violations related to possession, propagation, sale or release of harmful or potentially harmful exotic species by an aquaculturist.

2. Fiscal Note.

Robert Macdonald, regulations coordinator, has determined that for each of the first five years that the rules as proposed is in effect, there will be no fiscal implications to state and local governments as a result of enforcing or administering the rules because the required duties are already being carried out and the amendments neither create, replace, nor eliminate any sources of revenue.

3. Public Benefit/Cost Note.

Mr. Macdonald also has determined that for each of the first five years the rule as proposed is in effect:

(A) The public benefit anticipated as a result of enforcing or administering the rule as proposed will be rules that are clearer, more accurate, and more consistent, which facilitates compliance and therefore enhances the department’s ability to protect the native aquatic natural resources of the state.

(B) The department does not anticipate that there will be any adverse economic effects on small businesses, microbusinesses, or persons required to comply with the rules as proposed.

(C) The department has not drafted a local employment impact statement under the Administrative Procedures Act, §2001.022, as the agency has determined that the rules as proposed will not impact local economies.

(D) The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rules because Chapter 2007 does not apply to rules controlling non-indigenous or exotic aquatic resources.

(E) The department has not performed a regulatory impact analysis because the proposed amendments do not adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state.

(F) A consistency determination is not required under 31 TAC Chapter 505 because the proposed amendments do not involve any of the four threshold actions that would subject the proposed rules to a consistency review under the Coastal Management Program.

The amendments are proposed under the authority of Parks and Wildlife Code, §66.007, which authorizes the commission to regulate the importation, possession, sale, and placing into the water of this state harmful or potentially harmful exotic fish, shellfish and aquatic plants, and under Agriculture Code, §134.020, which authorizes the commission to regulate the importation, propagation, and sale of harmful or potentially harmful exotic species by an aquaculturist.

(11)[(7)] Disease—Contagious pathogens or injurious parasites which may be a threat to the health of natural populations of aquatic organisms.

(12)[(8)] Disease-Free—A status, based on the results of an examination conducted by a department approved shellfish disease specialist that certifies a group of aquatic organisms as being free of disease.

(13)[(9)] Exotic species—A nonindigenous plant or wildlife resource not normally found in public water of this state.

[(10) Fish farm—The property including all drainage ditches and private facilities from which cultured species are produced, held, propagated, transported, or sold.]

[(11) Fish farm complex—A group of two or more separately owned fish farms located at a common site and sharing privately owned water diversion or drainage structures.]

(F) Piranhas and Pirambebas: Family Serrasalmideae,[Priambebus] Subfamily: Serrasalminae—all species except pacus of the genus Piaractus;

(G) Payara and other wolf or vampire tetras: Family Characidae, [Rhaphiodontid Characoids] Subfamily: Rhaphiodontinae—all species of genera Hydrolycus and Rhaphiodon, including Cynodon[(synonymous with Cynodon)];

(H) Dourados: Family Characidae, Subfamily: Bryconinae—all species of genus Salminus;

(I) South American Tiger Fishes Family: Erythrinidae—all species;

(J) South American Pike Characoids Family: Ctenolucidae—all species of genera Ctenolucius and Boulengerella, including Luciocharax [(synonymous with Boulengerella)] and Hydrocinus[)];

(F)[(G)] Applesnails and Giant Rams-Horn Snail: all genera and species of the Family Ampullariidae (previously called Pilidae), including Pomacea and Marisa, except spiketop applesnail (Pomacea bridgesii)[Applesnails Family: Ampullariidae—Channeled Applesnail (Pomacea canaliculata)].

(19) [(17)] Harmful or potentially harmful exotic species exclusion zone—That part of the state that is both [area] south of SH 21 and east of I-35, but[, from its intersection with the Texas/Louisiana border, approximately five miles due east of Milam, Texas,] not including [that area of] Brazos County [south of SH 21, to San Marcos; thence south of IH 35 to Laredo].

(20) [(18)] Immediately—Without delay; with no intervening span of time.

(21) [(19)] Manifestations of disease—Manifestations of disease include, but are not limited to, one or more of the following: heavy or unusual predator activity, empty guts, emaciation, rostral deformity, digestive gland atrophy or necrosis, gross pathology of shell or underlying skin typical of viral infection, fragile or atypically soft shell, gill fouling, or gill discoloration.

(22) [(20)] Nauplius or nauplii—A larval crustacean having no trunk segmentation and only three pairs of appendages.

(24) [(22)] Place of business—A permanent structure on land where aquatic products or orders for aquatic products are received or where aquatic products are sold or purchased.

(25) [(23)] Post-larvae[Postlarva]—A juvenile crustacean having acquired a full complement of functional appendages.

(26) [(24)] Private facility—A pond, tank, cage, or other structure capable of holding cultured species in confinement wholly within or on private land or water, or within or on permitted public land or water.

(27) [(25)] Private facility effluent—Any and all water which has been used in aquaculture activities.

(28) [(26)] Private pond—A pond, tank, lake, or other structure capable of holding cultured species in confinement wholly within or on private land.

(29) [(27)] Public aquarium—An American Association of Zoological Parks and Aquariums accredited facility for the care and exhibition of aquatic plants and animals.

(30) [(28)] Public waters—Bays, estuaries, and water of the Gulf of Mexico within the jurisdiction of the state, and the rivers, streams, creeks, bayous, reservoirs, lakes, and portions of those waters where public access is available without discrimination.

(31) [(29)] Quarantine condition—Confinement of exotic shellfish such that neither the shellfish nor the water in which they are or were maintained comes into contact with water in the state and with other fish and/or [or] shellfish.

(32) Shellfish disease specialist-A person with a degree in veterinary medicine or a Ph.D. who specializes in disease of shellfish.

(33)[(30)] Triploid grass or black carp—A grass carp (Ctenopharyngodon idella) or black carp (Mylophryngodon piceus) that [which] has been certified by the United States Fish and Wildlife Service as having 72 chromosomes and as being functionally sterile.

(34)[(31)] Waste—Waste shall have the same meaning as in Chapter 26, §26.001(6) of the Texas Water Code.

(35)[(32)] Water in the state—Water in the state shall have the same meaning as in Chapter 26, §26.001(5) of the Texas Water Code.

(36)[(33)] Wastewater treatment facility—All contiguous land and fixtures, structures or appurtenances used for treating wastewater pursuant to a valid permit issued by the Texas Commission on Environmental Quality.

§57.113. Exceptions.

(a) A person who holds a valid Exotic Species Permit issued by the department may possess, propagate, sell and transport to the permittee's private facilities exotic harmful or potentially harmful fish, shellfish and aquatic plants only as authorized in the permit provided the harmful or potentially harmful exotic species are to be used exclusively:

(1) as experimental organisms in a department approved research program; or

(2) for exhibit in a public aquarium approved for display of harmful or potentially harmful exotic fish, shellfish and aquatic plants.

(b) A person may possess exotic harmful or potentially harmful fish or shellfish, exclusive of grass carp, without a permit, if the [intestines of the] fish or shellfish have been gutted[removed], or in the case of oysters, if the oysters have been shucked or otherwise removed from their shells.

(c) A person may possess grass carp harvested from public waters that have not been permitted for triploid grass carp, without a permit, if the grass carp[intestines] have been gutted[removed].

(e) An aquaculturist[A fish farmer] who holds a valid exotic species permit issued by the department may possess, propagate, transport, or sell Pacific white shrimp (Litopenaeus vannamei) provided the exotic shellfish meet disease free certification requirements listed in §57.114 of this title (relating to Health Certification of Exotic Shellfish) and as provided by conditions of the permit and these rules.

(f) An operator of a wastewater treatment facility in possession of a valid exotic species permit issued by the department may possess and transport permitted exotic species to their facility only for the purpose of wastewater treatment.

(g) A person may possess Mozambique tilapia in a private pond or private facility subject to compliance with §57.116(d) of this title (relating to Exotic Species Transport Invoice).

(h) The holder of a valid triploid grass carp permit issued by the department may possess triploid grass carp as provided by conditions of the permit and these rules.

(i) A licensed retail or wholesale fish dealer is not required to have an exotic species permit to purchase or possess:

(1) live individuals of triploid grass carp, silver carp, triploid black carp, bighead carp, blue tilapia, Mozambique tilapia, Nile tilapia [species] or hybrids of those species [listed in subsection (d) of this section] held in the place of business, unless the retail or wholesale fish dealer propagates one or more of these species. However, such a dealer may sell or deliver these species to another person only if the fish have been gutted or beheaded [the intestines or head of the fish are removed]; or

(2) Live Pacific white shrimp (Litopenaeus vannamei) held in the place of business if the place of business is not located within the exclusion zone described in §57.111 of this title (relating to Definitions) [Harmful or Potentially Harmful Exotic Species Exclusion Zone]. However, such a dealer may only sell or deliver this species to another person if the shrimp are dead and packaged on ice or frozen.

(j) The department is authorized to stock triploid grass carp into public waters in situations where the department has determined that there is a legitimate need, and when stocking will not affect threatened or endangered species, coastal wetlands, or specific management objectives for other important species.

(k) An aquaculturist[A fish farmer] who holds a valid exotic species permit issued by the department may possess, propagate, transport and sell Pacific blue shrimp (Litopenaeus stylirostris) provided the exotic shellfish are cultured under quarantine conditions in private facilities located outside the harmful or potentially harmful exotic species exclusion zone, and meet disease free certification requirements listed in §57.114 of this title (relating to Health Certification of Exotic Shellfish) and as provided by conditions of the permit and these rules.

(l) A person operating[An operator of] a mechanical plant harvester in accordance with the provisions[possession] of a valid exotic species permit issued by the department may remove and dispose of prohibited plant species from public or private waters only by means authorized in the permit.

(a) All disease free certification of exotic shellfish must be conducted by a shellfish disease specialist approved by the department.

(b) Any person importing live exotic shellfish from facilities outside the state must prior to importation:

(1) provide documentation to the department that the shellfish to be imported have been inspected and certified as disease-free by a department-approved shellfish disease specialist; and

(2) receive acknowledgment from the department that the requirements of paragraph (1) of this subsection have been met.

(c) Any person in possession of exotic shellfish for the purpose of production of post-larvae must provide to the department monthly certification that nauplii and post-larvae have been examined and are certified to be disease-free. If certification cannot be provided, the exotic shellfish must be maintained in quarantine condition until the department acknowledges in writing that the stock is disease-free or specifies in writing condition(s) under which the quarantine can be removed.

(d) Any person in possession of exotic shellfish stocks who observes one or more of the manifestations of disease appearing on the clinical analysis checklist provided by the department shall:

(1) immediately place the entire facility under quarantine condition [the entire facility], immediately notify the department and immediately request an inspection from a certified inspector[department approved examiner]; or

(2) immediately place the entire facility under quarantine condition [the entire facility], immediately notify the department and immediately submit samples of the affected shellfish to a department approved shellfish disease specialist for analysis. Results of such analyses shall be forwarded to the department immediately upon receipt.

(e) Upon receiving a request from a permit holder under subsection (d)(1) of this section, the certified inspector [department approved examiner] shall inspect the private facility, complete the clinical analysis checklist provided by the department, and submit copies of the checklist to the department and the permit holder.

(f) No more than 14 days prior to [Before] harvesting ponds or discharging any waste [for the first time in any calendar year] into or adjacent to water in the state, the permittee shall:

(1) have a certified inspector visit [department approved examiner inspect] the facility and examine samples of the shellfish from each[the] pond or other structure from which waste will be discharged or from which shellfish will be harvested or from any other pond or structure that in the opinion of the certified inspector requires further investigation [containing exotic shellfish no more than 14 days prior to the first discharge or harvest] and shall submit the results of the examination to the department on the [department approved] clinical analysis checklist; or

(2) submit samples of the shellfish from each[the] pond or other structure containing exotic shellfish to a department approved shellfish disease specialist for analysis no more than 14 days prior to the first discharge or harvest and submit the results of such analyses to the department immediately upon receipt.

(g) If the results of an inspection performed under subsection (f)(1) of this section indicate the presence of one or more manifestations of disease, the permittee shall immediately place the entire facility under quarantine condition and immediately submit samples of the shellfish from the affected portion(s) of the facility to a department approved shellfish disease specialist for analysis. Results of such analyses shall be forwarded to the department immediately upon receipt.

(h) If the results of analyses performed under subsection (f)(2) of this section indicate the presence of disease, the permittee shall immediately place the entire facility under quarantine condition.

(i) If the results of inspections or analyses of shellfish from a [A] private facility quarantined under subsections (d), (g) or (h) of this section indicate the presence of disease, the facility shall remain under quarantine condition until the department removes the quarantine condition in writing or authorizes in writing other actions deemed appropriate by the department based on the required analyses.

(j) If the results of inspections or analyses[testing] performed under subsection (f) of this section indicate the absence of any manifestations of disease, the permittee may begin discharging from the facility.

§57.115. Transportation of Live Exotic Species.

(a) Transport of live harmful or potentially harmful exotic species is prohibited except by:

(1) An aquaculturist[ a fish farmer] in possession of a valid exotic species permit and an exotic species transport invoice [Exotic Species Permit and an exotic Species Transport Invoice];

(2) a commercial shipper acting for the permit holder in possession of an exotic species transport invoice[Exotic Species Transport Invoice];

(3) persons holding exotic species pursuant to limitations of §57.113 of this title (relating to Exceptions).

(b) An aquaculturist[ a fish farmer] transporting live triploid grass or black carp must have sales invoices which account for all triploid grass or black carp being transported and a copy of the United States Fish and Wildlife Service certification declaring that the carp being transported have been certified as being triploid in addition to meeting requirements of Chapter 134 of the Agriculture Code.

§57.116. Exotic Species Invoice.

(a) An exotic species transport invoice shall contain all the following information correctly stated and legibly written: invoice number; date of shipment; name, address, and phone number of the shipper; name, address, and phone number of the receiver; aquaculture[fish farmer's Aquaculture] license number and exotic species permit number, if applicable; number and total weight of each harmful or potentially harmful exotic species; a check mark indicating interstate import, interstate export, or intrastate type of shipment. A completed invoice shall accompany each shipment of harmful or potentially harmful exotic species sold or transferred, and shall be sequentially numbered during the permit period; no invoice number shall be used more than once during any one permit period by the permittee.

(b) The exotic species transport invoice shall be provided by the permittee; one copy shall be retained by the permittee for a period of at least one year following shipping date and one copy shall be forwarded to the department's Exotic Species Program Leader.

(c) The permittee is responsible for supplying completed copies of the exotic species transport invoice to out-of-state dealers from which the permittee has purchased and or received harmful or potentially harmful exotic species, or to whom harmful or potentially harmful exotic species are transferred so that shipment will be properly marked and numbered upon delivery to the permittee in Texas.

(d) Owners, or their agents, of private ponds stocked with Mozambique tilapia or triploid grass carp by an Exotic Species Permit holder shall retain a copy of the Exotic Species Transport Invoice for a period of one year after the stocking date or as long as the tilapia or triploid grass carp are in the water, whichever is longer.

§57.117. Exotic Species Permit: [Fee and] Application Requirements.

(a) To be considered for an exotic species permit[Exotic Species Permit], the applicant shall:

(1) meet one or more of the following criteria:

(A) possess a valid aquaculture license[Aquaculture License];

(B) possess a valid permit from the Texas Commission on Environmental Quality authorizing operation of a wastewater treatment facility;

(A) all private facilities and owner's name and physical address including a designation on the plat of all private facilities which will be used for possession of harmful or potentially harmful exotic species;

(B) all structures which drain private facilities;

(C) all points at which private facility effluent is discharged from the private facilities or the aquaculture facility[fish farm];

(D) all structures designed to prevent escapement of harmful or potentially harmful species from the aquaculture facility[fish farm];

(E) any vats, raceways, or other structures to be used in holding harmful or potentially harmful exotic species;

(4) demonstrate to the department that an existing aquaculture facility[fish farm], private facility or wastewater treatment facility meets requirements of §57.129 of this title (relating to Exotic Species Permit: Private Facility Criteria);

(5) remit to the department all applicable fees.

(b) Applicants for an exotic species permit for culture of harmful or potentially harmful exotic shellfish must meet all exotic species permit application requirements and requirements for disease free certification as listed in §57.114 of this title (relating to Health Certification of Exotic Shellfish).

(c) An applicant for an exotic species permit shall provide upon request from the department documentation necessary to identify any harmful or potentially harmful exotic species and confirm the source of origin for the species for which a permit is sought.

(d) An applicant for an exotic species permit[Exotic Species Permit] whose facility is located within the harmful or potentially harmful exotic species exclusion zone as defined in §57.111 of this title (relating to Definitions) must submit an emergency plan[Emergency Plan] to the department for review and approval. The plan shall include measures sufficient to prevent release or escapement of permitted harmful or potentially harmful exotic species into public water during a natural catastrophe (such as a hurricane or flood).

§57.118. Exotic Species Permit Issuance.

(a) The department may issue an exotic species permit[Exotic Species Permit] only to:

(1) an aquaculturist[a fish farmer] and only for species listed in §57.113(d), (e), and (k) of this title (relating to Exceptions);

(2) a wastewater treatment facility operator;

(3) department approved research programs; or

(4) a public aquarium for display purposes only.

(b) The department may issue an exotic species permit upon a finding by the department that:

(1) all application requirements as set out in §57.117 of this title (relating to Exotic Species Permit: Fee and Application Requirements) have been met;

(2) the aquaculture facility[fish farm] operated by the applicant and named in the permit meets or will meet the design criteria listed in §57.129 of this title (relating to Exotic Species Permit: Private Facility Criteria);

(3) the applicant has complied with all provisions of the Parks and Wildlife Code, §66.007, §66.015, and these rules during the one-year period preceding the date of application.

(c) Permits issued for aquaculture facilities[fish farms], private facilities or wastewater treatment facilities under construction shall not authorize possession of harmful or potentially harmful exotic fish, shellfish or aquatic plants until such time as the department has certified that the aquaculture facility[fish farm], private facilities or wastewater treatment facility as-built meets the requirements in §57.129 of this title (relating to Exotic Species Permit: Private Facility Criteria).

§57.119. Exotic Species Permit: Requirements for Permits.

(a) A copy of the exotic species permit[Exotic Species Permit] shall be:

(1) made available for inspection upon request of authorized department personnel; and

(2) prominently displayed on the premises of the aquaculture facility[fish farm], private facilities or wastewater treatment facility named in the permit.

(b) Permittee must provide access to all facilities covered by the application to authorized department personnel during any hours in which operations pursuant to the exotic species permit are ongoing.

(c) If a permittee discontinues aquaculture[fish farming], research activities or public aquarium display involving harmful or potentially harmful exotic species or discontinues wastewater treatment, the permittee shall:

(1) immediately and lawfully sell, transfer or destroy all remaining individuals of that species in possession; and

(2) notify the department's Exotic Species Program Leader at least 14 days prior to cessation of operation.

(d) Upon a request, a permittee shall provide an adequate number of fish, shellfish, or aquatic plants to authorized department employees for identification and analyses.

(e) In the event that the aquaculture facility[fish farm], private facilities or a wastewater treatment facility of a permit holder appears in imminent danger of overflow, flooding, or release of harmful or potentially harmful exotic fish, shellfish or aquatic plants into public water, the permittee shall:

(f) Except in case of an emergency, a holder of an exotic species permit authorizing possession of Litopenaeus [Litoenaeus] vannamei must notify the department at least 72 hours prior to, but not more than 14[seven] days prior to any harvesting of permitted shellfish. In an emergency beyond the control of the permittee, notification of harvest must be made as early as practicable prior to beginning of harvest operations.

(g) A holder of an exotic species permit authorizing possession of harmful or potentially harmful exotic species may sell or transfer ownership of live individuals only to the holder of a valid exotic species permit specifically authorizing possession of transferred species.

(h) Upon discovery of release or escapement of harmful or potentially harmful exotic fish or shellfish from any private facilities authorized in an exotic species permit, the permittee must immediately halt discharge of all private facility effluent from the aquaculture facility[fish farm]. If the permittee's private facility is located within an aquaculture[a fish farm] complex, upon discovery or release or escapement of harmful or potentially harmful fish or shellfish, the permittee must immediately halt discharge of all private facility effluent.

(i) A holder of an exotic species permit must notify the department's Exotic Species Program Leader in the event of escapement or release of harmful or potentially harmful exotic fish or shellfish, within two hours of discovery.

(j) All devices required in the exotic species permit for prevention of discharge of harmful or potentially harmful exotic fish, shellfish, or aquatic plants must be in place and properly maintained prior to and at all times such species are in possession.

(k) All private facility effluent discharged from an aquaculture facility[a fish farm] holding exotic harmful or potentially harmful species must be routed through all devices for prevention of discharge of exotic species as required in the permit.

(l) A permittee must notify the department's Exotic Species Program Leader in the event of change of ownership of the aquaculture facility[fish farm] named in that permittee's exotic species permit. Notification must be made immediately.

(m) Permits are not transferable from site to site.

§57.120. Exotic Species Permit: Expiration and Renewal

(a) An exotic species permit[Exotic Species Permits] required by these rules expires on December 31 of the year issued.

(b) The department may renew an exotic species permit[Exotic Species Permit] upon finding that:

(1) the applicant has met application requirements in §57.117 of this title (relating to Exotic Species Permit: Fee and Application Requirements);

(2) the facility will meet all applicable facility design criteria listed in §57.129 of this title (relating to Exotic Species Permit: Private Facility Criteria);

(3) the applicant has complied with all provisions of the Parks and Wildlife Code, §66.007, §66.015, and these rules during the one-year period preceding the date of agency action on the application for renewal; and

(4) the applicant has submitted a renewal application and all required annual reports to the department as required in §57.123(a) and (b) of this title (relating to Exotic Species Permit Reports).

§57.121. Exotic Species Permit – Amendment.

(a) Exotic species permits may be amended upon a finding by the department that:

(1) the applicant has complied with all provisions of the Parks and Wildlife Code, §66.007, §66.015, all provisions of the[conditions in] permit, and these rules during the one-year period preceding the date of application;

(2) the applicant has met all applicable application requirements under §57.117 of this title (relating to Exotic Species Permit—Fee Application Requirements); and

(3) the facilities as altered will meet the private facility criteria in §57.129 of this title (relating to Exotic Species Permit).

(b) Exotic species permits must be amended to reflect any:

(1) addition or deletion of species of harmful or potentially harmful exotic fish, shellfish, or aquatic plants held pursuant to the permit;

(2) intended redistribution of harmful or potentially harmful fish, shellfish, and aquatic plants into private facilities not authorized in the permit;

(5) change in existing design criteria listed in §57.129 of this title (relating to Exotic Species Permit—Private Facility Criteria).

(c) Applicants seeking amendment of exotic species permits, including those issued prior to January 23, 1992, must meet all application requirements listed in §57.117 of this title (relating to Exotic Species Permit—Fee and Application Requirements) and facility design criteria listed in §57.129 of this title (relating to Exotic Species Permit—Private Facility Criteria).

§57.122. Appeal. An opportunity for hearing shall be provided to the applicant or permit holder for any denial of an exotic species permit or a triploid grass carp permit or where the terms of issuance are different from those requested by the applicant.

(1) Requests for hearings shall be made in writing to the department no more than 30 days from receipt of the denial notification.

(2) All hearings shall be conducted in accordance with the rules of practice and procedure of the State Office of Administrative Hearings and applicable provisions of the Government Code[Texas Parks and Wildlife Department and the Administrative Procedure Act].

§57.123. Exotic Species Permit Reports.

(a) The exotic species permit[Exotic Species Permit] holder shall submit an annual report that accounts for importation, possession, transport, sale, transfer or other disposition of any harmful or potentially harmful exotic species handled by the permittee. This report shall be submitted on forms provided by the department with the application and shall be due January 10 of each year.

(b) An exotic species permit[Exotic Species Permit] holder who has imported, possessed, transported, transferred or sold triploid grass carp shall provide a copy of each exotic species transport invoice issued and a copy of each triploid grass carp certification received by the permittee for triploid grass carp purchased during the past year with their annual report.

§57.124. Triploid Grass Carp; Sale, Purchase.

(a) Triploid grass carp may be sold only by a holder of an exotic species permit authorizing possession of triploid grass carp, and only to:

(1) a person in possession of a valid exotic species permit authorizing possession of triploid grass carp; or

(2) a person in possession of a valid triploid grass carp permit, and only in an amount less than or equal to that number specified in the permit.

(b) A person who holds a valid triploid grass carp permit may purchase triploid grass carp only from a Texas aquaculturist[fish farmer] in possession of a valid exotic species permit authorizing possession of triploid grass carp, and only in an amount less than or equal to that number specified in the triploid grass carp permit.

(c) A holder of an exotic species permit may obtain triploid grass carp only from:

(1) the holder of a valid exotic species permit authorizing possession of triploid grass carp; or

(2) a lawful source outside of the state.

(d) An aquaculturist[A fish farmer] in possession of an exotic species permit must notify the department not less than 72 hours prior to taking possession of any and all shipments of triploid grass carp received from any source. Notification must include:

(1) number of triploid grass carp being purchased;

(2) source of triploid grass carp;

(3) final destination of triploid grass carp;

(4) name of certifying authority who conducted triploid grass carp certification; and

(5) name, address and aquaculture[fish farmer's Aquaculture] license number (if applicable) of both shipper and receiver.

§57.129. Exotic Species Permit: Private Facility Criteria.

(a) The aquaculture facility[fish farm] or wastewater treatment facility must be designed to prevent discharge of water containing adult or juvenile harmful or potentially harmful exotic species, their eggs, seeds or other reproductive parts from the permittee's property.

(b) Aquaculture facilities[Fish farms] holding harmful or potentially harmful exotic fish or shellfish shall have at least three appropriately designed and constructed permanent screens placed between any point in the aquaculture facility[fish farm] where harmful or potentially harmful exotic fish or shellfish are intended to be in water on the aquaculture facility[fish farm] and the point where private facility effluent first leaves the aquaculture facility[fish farm].

(1) Screen mesh shall be of an appropriate size for each stage of exotic fish or shellfish growth and development.

(2) One screen must be permanently affixed in front of the final discharge pipe in the harvest structure and remain in place while the pond is in use. This screen and backing material must be of sufficient strength to withstand a water level differential of the height of the discharge area.

(3) At those facilities which discharge into public waters, one screen must be secured over the terminal end of the discharge pipe at all times. This screen must be secured in such a fashion as to prevent escape of permitted species. A second, additional screen must be secured over the terminal end of the discharge pipe during all harvest activities.

(4) Screens must be designed and constructed such that screens can be maintained and cleaned without reducing the level of protection against release of harmful or potentially harmful exotic fish or shellfish. The department may approve alternate methods of preventing discharge of harmful or potentially harmful exotic fish or shellfish upon a finding that those methods are at least as effective in preventing discharge of adult or juvenile harmful or potentially harmful exotic species, their eggs, seeds, or other reproductive parts from the permittee's property. The point of discharge of all mechanical harvesting devices must be double screened to prevent escapement of harmful or potentially harmful fish or shellfish.

(c) An aquaculture facility that is[Fish farms which are] to contain species or hybrids of species listed in §57.113 of this title (relating to Exceptions) and wastewater treatment facilities containing permitted exotic species which are within the 100-year flood plain, referred to as Zone A on the National Flood Insurance Program Flood Insurance Rate Map, must be enclosed within an earthen or concrete dike or levee constructed in such a manner to exclude all flood waters and such that no section of the crest of the dike or levee is less than one foot above the 100-year flood elevation. Dike design or construction must be approved by the department before issuance of a permit.

(d) An aquaculture facility[Fish farms] containing harmful or potentially harmful exotic shellfish shall be capable of segregating stocks of shellfish which have not been certified as free of disease from other stocks of shellfish on that aquaculture facility[fish farm].

(e) An aquaculture facility[A fish farm] containing harmful or potentially harmful exotic fish or shellfish must have in place security measures designed to prevent unrestricted or uncontrolled access to any private facilities containing harmful or potentially harmful exotic fish or shellfish. Security measures must prevent unauthorized removal of such species from the fish farm.

(f) For aquaculture facilities[fish farms] that are part of an aquaculture[a fish farm] complex, the following additional facility standards shall apply.

(1) Each permittee shall maintain in the common drainage at least one screen for preventing the movement of harmful or potentially harmful exotic fish or shellfish between the point where private facility effluent from the permittee's private facility[fish farm] enters the common drainage and each point where an adjacent aquaculturist’s[fish farmer's] private facility effluent enters the common drainage. The adequacy of design and construction of such screens or other structures shall be determined by the department as provided in subsection (a)(1) of this section.

(2) Each permittee within the complex must have authority to stop the discharge of private facility effluent from the complex in the event of escapement or release of such fish or shellfish from that permittee's private facility[fish farm].

§57.130. Exotic Species Interstate Transport Permit.

(a) Transport of live harmful or potentially harmful exotic species originating from a point of origin outside the state of Texas and being transported through Texas to a destination outside of the state of Texas is prohibited except by the holder of an exotic species permit or an exotic species interstate transport permit[Exotic Species Permit or an Exotic Species Interstate Transport Permit].

(b) Anyone transporting live harmful or potentially harmful exotic species must provide documentation accounting, collectively, for all exotic species being transported.

(a) The department shall charge a nonrefundable exotic species interstate transport permit[Exotic Species Interstate Transport Permit] application fee as specified in Chapter 53 of this title (relating to Finance)[of either:]

[(1) $25 for individual permits; or]

[(2) $100 for an annual permit].

(b) To apply for an exotic species interstate transport permit[Exotic Species Interstate Transport Permit] an applicant shall:

(1) complete and submit an exotic species interstate transport permit[Exotic Species Interstate Transport Permit] application on a form provided by the department;

(2) remit to the department's Exotic Species Program Leader all applicable fees.

(c) An applicant for an exotic species interstate transport permit[Exotic Species Interstate Transport Permit] shall provide documentation upon request from the department necessary to identify any harmful or potentially harmful exotic species and source of origin of the species for which the permit is sought.

(d) The department may issue an exotic species interstate transport permit[Exotic Species Interstate Transport Permit] upon a finding that all provisions of subsections (a)-(c) of this section have been met.

(a) A copy of the exotic species interstate transport permit[Exotic Species Interstate Transport Permit] shall be made available for inspection immediately upon request of authorized department personnel.

(b) Permittee must provide access to shipments of exotic species to authorized department personnel during the effective date of the permit.

(c) Permittee must notify the department's Exotic Species Program Leader in writing or by facsimile transmission at least 72 hours prior to transport of live harmful or potentially harmful exotic species indicating transport date, intended transportation route, and name and physical address of recipient.

(d) While transporting harmful or potentially harmful exotic species within the state of Texas, a holder of an exotic species interstate transport permit[Exotic Species Interstate Transport Permit] must notify the department's Exotic Species Program Leader in the event of escapement or release of harmful or potentially harmful exotic species within two hours of release.

(e) Except as provided by the terms and conditions of the exotic species interstate transport permit[Exotic Species Interstate Transport Permit], offloading or transfer of shipments of harmful or potentially harmful exotic species in the state of Texas is prohibited.

(a) An exotic species interstate transport permit expires[Exotic Species Interstate Transport Permits expire] as stated on the permit.

(b) A separate exotic species interstate transport permit[Exotic Species Interstate Transport Permit] must be issued for each vehicle, trailer or other such transporting unit when transporting live harmful or potentially harmful species through the state.

§57.134. Wastewater Discharge Authority.

(a) An applicant for an initial exotic species permit must provide the following:

(1) written documentation demonstrating that the applicant possesses the appropriate valid wastewater discharge authorization or has received an exemption from the Texas Commission on Environmental Quality if the aquaculture facility, aquaculture complex,[fish farm, fish farm complex]or private facility is designed such that a discharge of waste into or adjacent to water in the state will, or is likely to occur; or

(2) adequate documentation to demonstrate that the facility is designed and will be operated in a manner such that no discharge of waste into or adjacent to water in the state will, or is likely to occur.

(b) An applicant for an amendment or a renewal of an exotic species permit must provide the following:

(1) written documentation demonstrating that the applicant possesses or has timely applied for and is diligently pursuing the appropriate wastewater discharge authorization or exemption from the Texas Commission on Environmental Quality in accordance with 30 TAC Chapter 321, Subchapter O, if the aquaculture facility, aquaculture complex,[fish farm, fish farm complex] or private facility is designed such that a discharge of waste into or adjacent to water in the state will, or is likely to occur; or

(2) adequate documentation to demonstrate that the facility is designed and will be operated in a manner such that no discharge of waste into or adjacent to water in the state will, or is likely to occur.

(c) An exotic species permittee whose wastewater discharge authorization or exemption is revoked, suspended or annulled by the Texas Commission on Environmental Quality will be treated as an applicant for an initial permit under subsection (a) of this section.

§57.136. Penalties. The penalties for violation of this subchapter are prescribed by Parks and Wildlife Code, §66.012 and Agriculture Code, §134.023.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority adopt.